Summary

The summary of the report is as follows.

OII Australia is a national body by and for intersex people. We promote the human rights of intersex people in Australia, and provide information, education and peer support. OII Australia is a not-for-profit company, recognised by the Australian Taxation Office as a charitable institution. We are not publicly-funded; we rely on the contributions of our members.

We thank the government for its intention to include intersex in the proposed Human Rights and Anti-Discrimination Bill. In this submission to the Senate Inquiry on the bill we identify our concerns with the effectiveness of the proposals, and present recommendations to ensure appropriate and effective inclusion.

Intersex is a matter of biology, not gender identity

Intersex is a term which relates to a range of natural biological traits or variations that lie between “male” and “female”. An intersex person may have the biological attributes of both sexes, or lack some of the biological attributes considered necessary to be clearly defined as one or the other sex. Intersex is always congenital and can originate from genetic, chromosomal or hormonal variations. In many cases, intersex variations can be determined prenatally, via amniocentesis.

Intersex people suffer stigmatization and discrimination, and we need explicit protection in human rights and anti-discrimination legislation. This can only be achieved by explicitly recognizing intersex as a biological state, as in proposed Tasmanian anti-discrimination legislation, or by recognizing our diverse sex characteristics.

Intersex is not a third sex

We do not support the creation of a third sex; intersex is a spectrum of possibilities, not an arbitrary third category. We believe that any creation of a third sex would increase stigmatization of intersex differences, rather than ameliorate them.

Sex is customarily defined as being the two binary sexes, excluding people with atypical biologies. This is supported by extensive case law, and it is also implied in the proposed bill. Including intersex in anti-discrimination protection measures – as is proposed in Tasmania – does not require the creation of a third sex category.

Gender identity and “genuine” identification

While it is neither accurate nor appropriate for intersex to be defined as a gender identity, all intersex people (like other people) have a gender identity. The existing proposals on gender identity explicitly exclude the most vulnerable intersex people. Explicitly excluding people who do not identify as either male or female fails to protect those of us who are amongst the most easily identifiable, the most obviously different, and so the most vulnerable.

The proposals do not fully live up to the government’s objective of protecting LGBTI people from discrimination: Explicitly excluding some LGBTI people fails to achieve stated government objectives to protect LGBTI people.

The proposed test for authenticity conflicts with provisions to protect people on the basis of actual or perceived status: We believe that the words “on a genuine basis” should be omitted where they appear. No other attribute is tested in this way. This test appears to be a new provision, which does not appear in State legislation in NSW or Queensland.

Current State legislation is not effective

The Anti-Discrimination Board of NSW has found that existing State legislation does not effectively protect intersex people. The legislation in four States uses wording nearly identical with the proposed federal legislation.
We are unable to provide any evidence of successful cases brought under State laws anywhere in Australia as such cases simply can’t exist. Intersex people have, on more than three occasions in the last three years, attempted to use the provisions on indeterminate sex to bring a case. On all occasions applications were rejected on the basis that the issues were physical anatomical differences not gender identity. State anti-discrimination boards do not publish detailed data from point of contact.

The Tasmanian model

The current standard in State and Territory law is expected to shift in the near future, with an intersex-inclusive Tasmanian Anti-Discrimination Amendment Bill (No. 45 of 2012). This bill may pass before the first reading of federal legislation, at which point it would no longer claim to match the highest standard in State and Territory legislation.
If the Tasmanian bill does not progress to early implementation, for any reason, it still provides an important benchmark as a professionally-drafted bill that effectively includes intersex as a protected category.

Including intersex explicitly as a separate category in a current Tasmanian Anti- Discrimination Amendment Bill (No. 45 of 2012) has not been controversial. Inclusion of intersex as a separate protected category received bipartisan support during the bill’s second reading.

Religious exemptions

The proposed religious exemptions provide us with major grounds for concern. The application of a religious exemption to any group with distinct biological characteristics is a weighty undertaking. It should not occur by misconstruing intersex as a gender identity, particularly where exemptions could impact on children’s access to education, and on healthcare.

Proposals for federal anti-discrimination legislation

Intersex should be defined and listed as a protected attribute separate to Gender Identity. Intersex is a matter of biological sex characteristics, not a gender identity.

Gender Identity should be defined inclusively. Gender identity should protect all binary and non-binary gender identities, including culturally-specific genders, and not only those that are considered mainstream. It should also protect on the basis of gender expression. We do not believe that inclusion of all gender identities would have any new regulatory impact.

“On a genuine basis” should be omitted. This criterion is not applied to other protected categories; selective application would contradict provisions to protect people on the basis of their actual or perceived membership of a protected category.

The definition of intersex in the Tasmanian 2012 Anti-Discrimination Amendment Bill should be inserted: The definition of intersex is independent of a definition of gender identity. We do not believe that inclusion of intersex as a discrete category would have any new regulatory impact.

Intersex should not be subject to religious exemptions. The application of a religious exemption to any group with distinct biological characteristics is a weighty undertaking. It should not occur by misconstruing intersex as a gender identity. We do not believe it is appropriate to grant religious exemptions that could impact intersex children attending school.

Links to the submission

The submission can be found on the Senate Committee webpage as submission number 12.